Daniel Markind
Featured Post

International law for thee but not for me

Why has the Court's call for the immediate and unconditional release of Israeli hostages gotten lost in the public discourse?

Last week, the International Court of Justice (ICJ) amplified its ruling of January 26, 2024 which, among other things, stated that there is a possibility that “(a)t least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provision of the (Genocide) Convention.” On March 28, the ICJ strengthened its order, telling Israel to “take all necessary and effective measures” to ensure the provisions of basic services to the Palestinians. The ICJ also gave Israel a deadline of April 28 to file a report to the Court on measures taken to adhere to this order.

The ICJ’s actions caused numerous Israel critics both to crow over their success in branding Israel as a party violating international law and to try to further isolate Israel. South Africa, of course, welcomed the order, but other countries such as Belgium and agencies like Amnesty International joined in the criticism. As the Presidency of South Africa posted on X, Israel’s responsibilities under international law “can only be fulfilled by halting military operations in Gaza and adhering to the court’s directives.”

Lost in all of this anti-Israel invective is the fact that in its January 26 ruling, the ICJ wrote the following:

“85. The Court deems it necessary to emphasize that all parties to the conflict in the Gaza Strip are bound by international humanitarian law. It is gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and calls for their immediate and unconditional release.”

In the furor over the Israeli genocide controversy, this demand that Hamas immediately and unconditionally release the hostages has gone nearly unnoticed. No demand has been made by Israel, the United States or any other party for the ICJ call to be upheld. South Africa, which included Hamas representatives in its delegation to the ICJ in January, has done nothing to induce Hamas to follow the ICJ’s call.

Instead, South Africa has gone the other way, taking Israel to court again in March and trying to hide behind legalisms with regard to the hostages. Some would ask “why South Africa does not seek any court order against Hamas,” Vaughan Lowe, a British lawyer on the South African legal team noted. “Hamas is not a state and cannot be a party to the genocide convention and cannot be a party to these proceedings.”

Lowe claimed that other international bodies could address Hamas’s atrocities. Pointedly, Lowe refused to state which international body would address the Hamas atrocities and why South Africa had not sought such redress.

This demand to prosecute Israel yet refusal to act against Hamas reflects a long-standing continuation of attempts to place Israel in a straightjacket of international resolutions and laws yet disregard anything similar that might possibly be a benefit to the Jewish State. In effect, it says that “international law is for thee to follow, but not for me.”

The 2024 ICJ Opinion is just the latest in a long, inglorious list of similar situations. As the Gaza war drags on and the situation in Lebanon becomes more threatening, one need only look at UNSC Resolution 1701 in 2006 which ended the Israeli-Hezbollah war. Among the provisions was one that required the disarmament of all armed groups in Lebanon, so that, pursuant to the Lebanese cabinet decision of July 27, 2006, there will be no weapons or authority in Lebanon other than that of the Lebanese state. This of course has not happened, and Hezbollah blatantly refuses to disarm. The United Nations has not taken action against Hezbollah or Lebanon over this.

In addition, Resolution 1701 required that Hezbollah not maintain any such armed presence south of the Litani River. From the day this resolution was passed, Hezbollah flagrantly violated it.

Indeed Hezbollah’s entire existence is based upon a violation of United Nations Resolutions. In 2000 Israel retreated from Southern Lebanon to the international border. Israel’s withdrawal and compliance with UNSC Resolution 425 was personally certified by then Secretary General Kofi Annan on June 16, 2000. Nonetheless, Hezbollah claims it is preserving Lebanon’s territorial integrity as Israel is illegally occupying a small strip of land on the border area called either “Shebaa Farms” or “Har Dov.” Current Secretary General Antonio Guterres has not defended his predecessor’s actions at all. Apparently, according to the current United Nations Secretariat, one can violate United Nations resolutions and certifications all you want with impunity, and even encouragement, so long as you do it against Israel.

Indeed the entire project of trying to drive Israel into the Sea is based on an attempt to manipulate international law so that you violate International Law, as Israel was authorized by a vote of the United Nations on November 29, 1947, and created by those who fought for the new state in a war with countries who refused to (and some still refuse to) abide by international law.

Of course, successive Israeli governments have failed to adequately join the legal battle – including the public relations struggle adjacent to the legal battle – in a way that could work in Israel’s favor. Instead of demanding from the date the ICJ Opinion came down that South Africa, having brought the case before the ICJ, now do everything in its power to uphold Paragraph 85 and have Hamas release the hostages unconditionally, Israel mostly has stayed silent on this issue. Instead of plainly stating that Israel will not abide by the decisions of the ICJ if the other party to this war considers itself not bound by any determination, Israel has attempted to play defense and justify its actions with generalities such as it is not seeking to harm any civilian.

Israel would do better to go on the legal and public relations offensive. Israel should announce that while it always seeks to limit civilian casualties, it will abide by Paragraph 86 of the ICJ opinion (which contained Israel’s obligations) upon the adherence of Hamas to Paragraph 85. It will not, however, accept that it is bound to follow ICJ decisions while its people remain prisoners in Hamas dungeons (contrary to all rules of international law), Hamas thumbs its nose at the same ICJ that is issuing orders to Israel and South Africa, which acts as Hamas’s mouthpiece, does not lift a finger to ensure that Paragraph 85 is enforced.

Let it be the ICJ that has to explain why it should be able to pronounce legally binding orders to one party to a brutal conflict yet not the other, and for South Africa to explain why it cares so little about Hamas’s atrocities and violations of international law, yet runs to the Court to seek redress against Israel.

About the Author
Daniel B, Markind is an attorney based in Philadelphia specializing in real estate, commercial, energy and aviation law. He is the former Chair of the National Legal Committee of the Jewish National Fund of America as well as being a former member of the National Executive Board and the National Chair of the JNF National Future Leadership. He writes frequently on Middle Eastern and energy issues. Mr. Markind lives in the Philadelphia area with his wife and children.
Related Topics
Related Posts